Fawn G.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Nov 23, 2016

0120141925 (E.E.O.C. Nov. 23, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Fawn G.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120141925

Agency No. HS-ICE-01231-2011

DECISION

The Commission accepts Complainant’s appeal from the Agency’s April 2, 2014 final Agency
decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Mission Support
Assistant at the Agency’s Special Agent-in-Charge Office in Miami, Florida. The Agency
experienced staffing shortages and budget cuts. As a result, in April 2010, Complainant’s
supervisor (S1) began using Complainant to cover the receptionist’s desk after the individual
performing the position left the Agency. The clerical duties of the position were included in
Complainant’s Mission Support Assistant position.

On April 19, 2010, S1 met with Complainant and established a list of rules for the
receptionist’s desk. One of the rules prohibited eating at the receptionist’s desk. The next
day, S1 observed Complainant eating at the desk. Further, Complainant failed to answer

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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phone calls, and she never changed her phone status to “daytime” from the “nightshift” mode.
Additionally, Complainant did not see or provide assistance to an individual who knocked on
the door. S1 spoke with Complainant and informed her that she was not pleased with her
behavior.

On May 2, 2010, S1 and the Team Leader met with Complainant after she returned from a
week off. Numerous employees had complained to S1 that Complainant seemed very upset
and angry. During the meeting, S1 expressed concern for Complainant and explained to her
that her co-workers had spoken to her about Complainant’s demeanor. Complainant became
defensive and wanted to know who had said anything about her. S1 did not tell Complainant
who had complained.

Complainant experienced a work-related injury in 2002, and was restricted from lifting more
than 10 pounds. On May 6, 2010, Complainant claims that the Team Leader instructed her to
move heavy boxes. Complainant alleges that she moved the boxes and aggravated her
condition.

On August 13, 2010, an office memorandum was sent out informing employees that
Complainant was being permanently assigned to the receptionist’s desk. S1 was unable to
inform Complainant about the situation prior the memorandum’s dissemination, and
Complainant learned of the reassignment at the same time and in the same manner as all other
employees.

In October 2010, management disabled the internet connection on the computer on the
receptionist’s desk. Management determined that employees at the receptionist’s desk were
moving the computer out of view of security cameras and would be too distracted to assist
someone at the door. Complainant claims that the internet connection was not restored until
May 2011. Complainant returned to her regular Mission Support Assistant duties in 2012.

On August 1, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of
disability and age (52) as evidenced by multiple incidents including, inter alia, management
unjustly criticized her for not providing assistance to a female who knocked on the door;
management directed her to perform receptionist clerical duties; management has discontinued
assigning her Human Resources Personnel (HRP) duties; management accused her of having a
bad attitude and claimed that 10 people complained about her; the Team Leader inappropriately
directed her to move boxes knowing that she had medical restrictions; management sent an
email to all Investigative Assistants and supervisors announcing her permanent assignment to
the receptionist’s desk before management officially informed her; and she received notice that
her internet connection was disabled and her internet connection remained disabled until May
2011.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
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Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
FAD. In accordance with Complainant’s request, the Agency issued a FAD, pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was
no evidence that the conduct at issue was based on discriminatory animus. Specifically, with
regard to her claim that management criticized her for not assisting a visitor, management
officials denied criticizing her. Complainant further claimed that the Team Leader was
“watching” her. The Team Leader stated that part of her job was to monitor 16 security
cameras scanning all employees and work areas, including Complainant’s area. As to her
assignment to the receptionist clerical duties, S1 affirmed that she was directed by the Special
Agent-in-Charge to issue an email announcing Complainant’s temporary assignment to assist
with receptionist duties. S1 explained that the position had become vacant abruptly when the
incumbent accepted another position and the vacancy announcement was temporarily frozen
due to a lack of funding.

With respect to the removal of the HRP duties, S1 stated that Complainant’s job was to provide
assistance to Mission Support, and she performed no actual HR duties. S1 added that
Complainant was in charge of the maintenance of the copy machines and of a small drawer of
office supplies, did some photo copying, facilitated appointments for employees to get their ID
card renewals, and issued raid gear to the Agents.

Regarding the May 2010 meeting, S1 confirmed that many employees informed her that
Complainant was unpleasant towards them and had “snapped” at them that day. S1 noted that
she asked Complainant if she was okay, but that she did not discipline or reprimand
Complainant for the complaints.

As to her claim that she was inappropriately required to move boxes, S1 and the Team Leader
both denied requiring Complainant to move boxes. They both confirmed that they always
reminded Complainant to not lift anything and that they never requested that she lift anything.
S1 stated that Complainant has been routinely seen trying to lift things and was constantly
reminded by management and her co-workers that she was not permitted to do so. S1 added
that Complainant’s position was sedentary by nature and did not require her to perform any
physical activity that would exacerbate her condition.

With regard to the email about her assignment, S1 asserted that the Special Agent-in-Charge
ordered her to send out an email about Complainant’s permanent assignment, and that she
could not locate Complainant prior to sending it. As a result, Complainant and all other
employees were notified at the same time by the same email.

Finally, with respect to the disabled internet connection, S1 explained that the internet
connection was disabled only on the receptionist’s computer, and not on Complainant’s desk
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computer. S1 emphasized that this was done because of abuse, but that all employees,
including Complainant, had an internet connection on their regular desk computer.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or a hostile work environment as alleged. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that evidence shows that management lied and required her
to perform receptionist duties to discriminate against her. Complainant asserts that she was not
notified prior to the email announcing that she would be performing the receptionist duties full-
time. Complainant contests management’s statements of what her duties were as a Mission
Support Assistant, and argues that she was performing HR duties. Complainant states that the
Team Leader instructed her to move heavy boxes despite knowing of her prior injury. Finally,
Complainant argues that she was subjected to a hostile work environment by S1 and the Team
Leader. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on her statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. Here,
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Complainant asserted that based on her protected classes, management subjected her to a
hostile work environment based on several incidents where Agency officials took actions that
seemed adverse or disruptive to her. The Commission concludes that the conduct alleged was
insufficiently severe or pervasive to establish a hostile work environment.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory animus
played a role in any of the Agency's actions. The record reflects that the alleged incidents
were more likely the result of routine supervision, managerial discipline, and general
workplace disputes and tribulations. For example, with respect to Complainant’s claim that
she was unjustly criticized for ignoring a visitor, S1 affirmed that that she did inform
Complainant that she was not pleased with her behavior on the day in question. ROI, Ex. 2, at
6. S1 stated that Complainant had violated several rules including eating at the receptionist’s
desk, failing to change the phones to “daytime,” and failing to notice a customer at the door
because she had moved the computer away from view of the security monitor. Id.

Regarding her claim that she was moved to receptionist duties and her HR duties were
removed, S1 stated that she placed Complainant in this initially temporary position based on
orders from the Special Agent-in-Charge because of an abrupt vacancy. ROI, Ex. 8, at 3. S1
confirmed that Complainant’s original Mission Support duties were administrative support
functions, including filing and other clerical duties. Id. at 5-6. S1 emphasized that
Complainant assisted everyone in the office, including the HR Office. Id. at 6.

As to the May 2010 meeting, S1 affirmed that she received comments from other employees
that Complainant was acting unpleasant towards them. ROI, Ex. 8, at 6. S1 met with
Complainant to see how she was doing, and mentioned that several co-workers had reported
that she had snapped at them. Id. S1 noted that it was an informal meeting and she did not
document it or discipline Complainant. Id.

With respect to her claim that she was inappropriately directed to move boxes, the Team
Leader denied doing so and stressed that she has always reminded Complainant about her
injury and the risk of re-injuring herself. ROI, Ex. 6, at 6. S1 added that Complainant’s
duties at the receptionist’s desk were sedentary and did not require her to perform any physical
activity that would exacerbate her condition. ROI, Ex. 8, at 8.

Regarding the email announcing Complainant’s permanent assignment to the receptionist’s
desk, S1 stated that she was ordered to send it out immediately by the Special Agent-in-
Charge. ROI, Ex. 8, at 9. S1 affirmed that she could not locate Complainant to verbally
inform her prior to sending the email out, but S1 later advised Complainant that the
reassignment was at the direction of the Special Agent-in-Charge. Id. at 8-9.

Finally, as to the disabling of the internet connection, S1 confirmed that the internet was
disabled at the receptionist’s computer, but not at Complainant’s desk computer. ROI, Ex. 8,
at 10. S1 stated that the connection was previously disabled because employees became too
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distracted and neglected their duties. Id. at 11. S1 maintained that she heard that it had been
turned back on without permission, and that she noticed employees were too engrossed playing
on the internet to greet visitors. Id. at 11-12. As a result, management decided to disable the
internet at the receptionist’s desk.

Finally, to the extent that Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence showing that the Agency's
articulated reasons were a pretext for discrimination. As a result, the Commission finds that
Complainant was not subjected to discrimination or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

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Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 23, 2016
Date